FILED

United States Court of Appeals

Tenth Circuit

November 15, 2010

UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT

Clerk of Court

THU THUY HUYHN;

FONG THI BUI; TU THI BUI,
Petitioners,
No. 10-9509
(Petition for Review)

v.
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.

ORDER AND JUDGMENT *

Before LUCERO, EBEL, and OBRIEN, Circuit Judges.

Thu Thuy Huyhn, 1 a Vietnamese citizen, was charged as being subject to

removal under 8 U.S.C. 1227(a)(1)(A), because she procured her admission into
the United States by fraud or by willfully misrepresenting a material fact under
8 U.S.C. 1182(a)(6)(C)(i). The government alleged that Huyhn married Phuoc
*

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1

The two other petitioners, Fong Thi Bui and Tu Thi Bui, are Huyhns minor
children who entered the United States as derivatives on Huyhns visa.

Bui, a United States citizen, to procure an immigration visa. After two hearings
on the charge, the Immigration Judge (IJ) ordered Huyhn removed, concluding
that the charge had been proven by clear and convincing evidence. The Board of
Immigration Appeals (BIA) affirmed the IJs decision and dismissed the appeal.
Huyhn now seeks review of the agencys decision. Exercising jurisdiction under
8 U.S.C. 1252, we deny the petition for review.
I
In June 2000, Bui traveled to Vietnam to visit his country of origin and to
find a compatible spouse. His nephew, Thien Tuan Bui, who goes by the
nickname Se, 2 introduced him to Huyhn. At the time, Se and Huyhn were in the
process of getting divorced, but Bui testified that Se did not inform him of the
marriage. The divorce became final in August 2000.
Bui and Huyhn spent time together in Vietnam in the summer of 2000 and
continued to correspond after Bui returned to the United States. In the summer of
2001, Bui petitioned for a visa on behalf of Huyhn. Huyhn was admitted to the
United States on a K-1 non-immigrant fiance visa in August 2001 and married
Bui in September of the same year. In November 2002, Bui and Huyhn attended
Huyhns adjustment of status interview. After the interview, Huyhn was granted
conditional resident status.

We refer to Thien Tuan Bui hereinafter as Se to avoid confusion with

Phuoc Bui.
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Huyhn testified that the marriage was happy for the first six months but that
things changed in March or April of 2002 when she discovered that Bui was
involved with another woman. She further testified that she and Bui continued to
live together after that time, although they did not share a bedroom or engage in a
sexual relationship after March 2002.
Bui testified that his marriage to Huyhn was initially harmonious, but they
never consummated the marriage because Huyhn wanted to wait until they had a
traditional wedding ceremony in Vietnam. Bui testified that things changed
once Huyhn obtained her green card. He explained that he became suspicious
when he found out that Huyhn called her ex-husband, Se, in Vietnam, that she had
made plans to return to Vietnam in December without telling him, and that she
was looking for a United States citizen to sponsor Se to enter the United States.
In December 2002, Huyhn and Bui traveled separately to Vietnam. Bui
testified that he intentionally planned to arrive before Huyhn so that he could
investigate his suspicions. Bui visited Ses home and found letters and
photographs that Huyhn sent Se from the United States. Bui testified that he
confronted Huyhn in Vietnam when he discovered that she was staying with Se
and that during that conversation Huyhn told him she was still Ses wife and that
she had only been with Bui to get a green card. Bui testified that he was very
angry and that he told Huyhn he was going to return to the United States and
report her to immigration officials. He further testified that they offered to pay
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him money if he would refrain from reporting Huyhn. When Bui refused, Se and
Huyhn threatened him.
When Bui returned to the United States in February 2003, he reported
Huyhns fraud to the Department of Homeland Security (DHS). Bui filed for an
annulment of his marriage on February 18, 2003, and submitted a Petition for
Declaration of Invalidity to the Denver District Court, alleging that his marriage
should be declared invalid based on Huyhns fraud.
DHS requested that Bui provide some evidence of the alleged fraud. Bui
submitted a recorded telephone conversation involving himself, Huyhn, and Se, as
well as a written statement. The transcript of the tape shows that Bui asked
Huyhn, [y]ou and I are we husband and wife? Huyhn responded, [n]ot in
reality, but on paper we are. Se states to Bui, [y]ou and I are uncle and
nephew. But treat us just as you are doing it to anyone else. You helped my wife
to enter the country. Its 50% successful already. Now you just tell me the
price. Bui later asks Huyhn if she is happy with the $15,000 amount Se agreed
to pay him to continue the fraudulent marriage and Huyhn responds, [Se] is my
husband. If he is happy, then Ill be happy.
DHS Immigration and Customs Enforcement Agent Cory Voorhis testified
before the IJ about his investigation into Buis allegations, including his
interviews with Bui and Huyhn. Voorhis stated that Huyhn told him that her
marriage had effectively ended in March 2002, although she admitted she did not
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tell this to the immigration official at her adjustment of status interview in

November 2002. Voorhis also asked Huyhn if Se had agreed to pay Bui $15,000
to continue their marriage. Huyhn initially denied that there had been a payment,
but began crying and admitted to the payment when Voorhis told her that he had a
tape of the February 2003 telephone conversation.
The IJ ordered Huyhn removed from the United States. On Huyhns
appeal, the BIA remanded to the IJ to prepare a separate oral or written decision
for review. On remand, the IJ read his February 23, 2006, decision into the
record as a separate oral decision. The IJ found by clear and convincing evidence
that Huyhn procured her admission or her documentation or benefit to come to
the United States by fraud by entering into a sham marriage with Mr. [Bui] and
that Huyhn was therefore removable as charged.
On Huyhns second appeal, the BIA issued a single-member opinion
affirming the IJs decision and dismissing the appeal. The BIA stated that [i]n
particular, we find no clear error in the [IJs] extensive findings of fact, including
his credibility findings, and that in light of the [IJs] findings of fact, we find
no error in his determination that the respondents are removable as charged.
II
A BIA order dismissing an appeal constitutes a final order of removal
which we review pursuant to 8 U.S.C. 1252(a)(1) and (b)(2). We may consult
the oral decision of an IJ to the extent the BIAs order incorporates its reasoning.
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Witjaksono v. Holder, 573 F.3d 968, 973 (10th Cir. 2009) (citation omitted). We
review the BIAs factual findings for substantial evidence. Id. at 977. Under
this standard, factual findings are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary. Id. (quotation omitted). We
review de novo questions of law and constitutional challenges. See Ferry v.
Gonzales, 457 F.3d 1117, 1126 (10th Cir. 2006).
A
The IJ indicated that Huyhns credibility, and the credibility of most of the
other witnesses, was lacking. He concluded that the only credible witnesses were
Voorhis and Huyhns daughter. Huyhn complains that the IJs adverse credibility
determination was not supported by the record and that the IJ ma[de] no
assertions of inconsistency, problematic demeanor determinations or any other
basis for finding lack of credibility. Huyhn has not accurately characterized the
IJs decision.
The IJ summarized the testimony from the hearing, as well as other
evidence, and pointed out several inconsistencies with Huyhns testimony. For
example, the IJ recounted that Huyhns daughter testified Bui was upset when he
found out Huyhn had been corresponding with her ex-husband in Vietnam. The IJ
noted that Huyhn denied that she had done so, but the IJ found that there had in
fact been correspondence between Huyhn and her ex-husband, and this finding
was based on letters that were submitted into evidence. The IJ also found that
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Huyhn lied about the $15,000 payment from her ex-husband to Bui. Further, the
IJ found that Huyhn lied about a $250 payment to a woman Huyhn wanted to
marry her ex-husband so that he could enter the United States; a canceled check
and other correspondence in the record supported the IJs finding. We conclude
that the IJ provided a sufficient basis for his credibility determination, and that
the BIA properly affirmed the IJs decision.
B
Huyhn also argues that the agencys decisions violate the Administrative
Procedure Act (APA) and her due process rights because they are conclusory.
We disagree. An agency is not required to provide a lengthy explanation of its
decision as long as it explains its action with such clarity as to be
understandable. SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).
Both the IJ and the BIA decisions satisfy this standard. The IJ provided
sufficient factual findings to support his decision that Huyhn fraudulently entered
into a marriage with Bui for the purpose of gaining admission into the United
States. The BIAs decision provides adequate reasoning. It finds no clear error
in the IJs factual findings, and relies on those factual findings to conclude that
the IJ properly found Huyhn removable as charged. Huyhn has accordingly failed
to establish a violation of the APA.
Huyhns APA-related due process claim likewise fails because she has not
demonstrated that the agency decisions are fundamentally unfair. See Alzainati v.
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Holder, 568 F.3d 844, 851 (10th Cir. 2009) ([A]n alien in removal proceedings is
entitled only to the Fifth Amendment guarantee of fundamental fairness.
(quotation omitted)).
C
Huyhn raises several additional due process arguments that are unrelated to
the APA. First, she complains that the record exhibits were not provided or
offered to her in preparation for her appeal before the BIA. But Huyhn fails to
explain what steps, if any, she took to obtain the exhibits. BIA Practice Manual
Rule 1.5 allows a party to obtain any portion of the record. Because Huyhn does
not allege, much less demonstrate, that the BIA refused a proper request to obtain
exhibits, she has not demonstrated error by the agency.
Next Huyhn argues that her case must be remanded because the government
failed to produce an adequate transcript of her two hearings.
As in other contexts, the governments failure to produce an adequate
transcript does not necessarily rise to the level of a due process
violation mandating reversal or remand. Rather, to demonstrate a
denial of due process and obtain relief, an alien must show that the
deficient transcript prejudiced [her] ability to perfect an appeal. That
is, an alien must show that the gaps in the transcript relate to matters
material to [her] case and that they materially affect [her] ability to
obtain meaningful review.
Witjaksono, 573 F.3d at 974-75 (citations, quotations, and alterations omitted).
Huyhn claims there are 109 indiscernible notations in the record, but she does
not articulate how these gaps in the transcript were material or materially affected

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her ability to obtain meaningful appellate review. Similarly, Huyhn asserts that
the IJ did not adequately identify and mark the exhibits in the administrative
record, but she again fails to explain how this alleged deficiency prejudiced her
case. Accordingly, there is no cause for remand based on these contentions. See
id. at 975.
D
Finally, Huyhn asserts that this case should be remanded to the IJ to
determine whether the credibility of Voorhis, the DHS agent who investigated her
case, should be reexamined in light of his actions subsequent to this case. Citing
to extra-record evidence, Huyhn contends that Voorhis was terminated from his
employment at DHS amid a flurry of accusations involving his character. But
we may not consider this argument because Huyhn did not raise it before the BIA.
See Torres de la Cruz v. Maurer, 483 F.3d 1013, 1017 (10th Cir. 2007) ([W]e
have jurisdiction only over those claims that were presented to the BIA and were
properly appealed to this court . . . .). Although Huyhn asserts that she could not
have raised this issue in her appeal to the BIA because Voorhis termination was
not administratively final until May 2010, she nevertheless must raise this issue
with the agency before obtaining review in this court. Cf. 8 C.F.R. 1003.2(c)(1)
(governing a motion to reopen based on new facts).

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III
For the foregoing reasons, we DENY the petition for review.

Entered for the Court

Carlos F. Lucero
Circuit Judge

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